Barbara Glynn Alves
I cut my teeth in the environmental, health and safety (EHS) business helping prepare a group of experts for deposition in civil actions. It was fascinating work, but I can tell you without hesitation, that not all experts are created equal. If you are in litigation regarding an environmental, health or safety issue, there is a good chance that both plaintiff and defendant counsel will enlist the services of an expert or two. Caveat emptor - shop around!
What is the role of an Expert Witness?
The legal profession relies heavily on the use of industry experts to clarify and support evidence or facts that are at issue. These experts are most often used to clarify the scientific or technical facts of the case. Specifically, the job of the expert witness is to assist the trier of fact (either the judge or a jury) by helping them understand things they might not otherwise understand.
Counsel seek experts based on their knowledge, training, education, skills, reputation or experience in their field of expertise in accordance with the Federal Rules of Evidence 702 (FRE 702). As with all expert witnesses, EHS experts are generally asked to perform a variety of different tasks, depending on counsels strategy for the case:
- Review documents
- Conduct independent investigations
- Perform research particularly on regulations
- Prepare an opinion about the facts
- Present an expert report written or orally
- Give a sworn deposition
- Testify at trial
How do you shop for an EHS expert?
Cautiously! Litigation is expensive in both professional fees and time so it pays to use the most qualified and suitable expert available. In addition to following FRE 702, your counsel should also consider the experts ability to write technical documents, the level of support the expert can provide to research the facts of the case, and their comfort level providing these services in the legal forum and within a litigious and, perhaps, emotionally charged environment.
Also, to better illuminate a witnesss expertise, there are several independent certifying boards that can help you and your attorney through the vetting process. The organizations listed below use a fairly elaborate and strict certification procedure and have required continued maintenance actions of their designees. Each one of these organizations gives additional information about their specific certification requirements and process on their websites. Their areas of expertise are also clearly explained, particularly if you are in need of a specialist.
- The American Board of Industrial Hygiene certifies professionals in the practice of industrial hygiene. ABIH is responsible for ensuring high-quality certification application and examination processes, certification maintenance and ethics governance and enforcement.
- The Board of Certified Safety Professionals certifies professionals within several designations all related to safety in the workplace.
- The Institute of Hazardous Materials Management offers several professional certifications that demonstrate various levels of knowledge, expertise, and excellence in the management of hazardous materials.
- The Board of Environmental Auditor Certifications certifies four designation of EHS professionals which demonstrates the competency, professionalism, and ability of EHS auditors.
- The American Board for Occupational Health Nurses (ABOHN) is an independent nursing specialty certification board and is the sole certifying body for occupational health nurses in the United States and awards four credentials: Certified Occupational Health Nurse (COHN), Certified Occupational Health Nurse - Specialist (COHN-S), Case Management (CM), and Safety Management (SM).
For both counsel and client, I recommend spending time to do research and find qualified EHS professionals who can help you win your case. Ask for detailed CVs, referrals, samples of published writings and the achievement of board certification. As an EHS consulting group with professionals who have achieved CHMM, CIH, CSP, PE, CHMP and CHST designations, Emilcott is often asked to provide expert witness services in a wide variety of environmental, health and safety legal matters. We take certification from independent sources seriously, as do our clients. In fact, attainment of a professional certification has always been a requirement for our senior technical staff. Working with the legal profession has only reinforced that philosophy.
Have you ever worked with an EHS expert witness? What did you think of the experience?